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HomeMy WebLinkAbout2025-cv-63 - Reyes v. McDonalds, et al - 001 - Notice of RemovalIN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 1:25-cv-00063 Tersita Reyes; Plaintiff. v. McDonalds Corp. IL; McDonald’s Store No. 11148; Franchise MOD (09-25-2023); August Barber; and The City of Cort Collins. Defendants. NOTICE OF REMOVAL Defendants, August Barber and the City of Fort Collins (hereinafter “Fort Collins Defendants”), by and through their undersigned counsel, Hall & Evans, LLC, hereby submit the following Notice of Removal of the above-captioned matter from Larimer County District Court, Colorado to the United States District Court for the District of Colorado pursuant to 28 U.S.C. §§ 1331, 1441, and 1446, and Fed. R. Civ. P. 81(c), stating as follows: I. INTRODUCTION 1. Pro se Plaintiff Teresita Reyes (“Plaintiff”) initiated this lawsuit on September 24, 2024 against Defendants McDonalds Corp. IL – McDonald’s Store No. 11148, Local Franchise Owner Organization, Franchise MOD (09-25-2023), August Barber, FCPD, and Fort Collins Police Department (“Defendants”), in Larimer County District Court, State of Colorado, Case No. 1:25-cv-00063 Document 1 filed 01/08/25 USDC Colorado pg 1 of 11 2 captioned Teresita Reyes v. McDonalds Corp. IL – McDonald’s Store No. 11148; Local Franchise Owner Organization, Franchise MOD (09-25-2023); August Barber, FCPD; and Fort Collins Police Department 1, Civil Action No. 2024CV202 (“State Action”). See Exhibit A, Plaintiff’s Complaint and Jury Demand. Plaintiff filed her First Amended Complaint on November 4, 2024. See Exhibit K, Plaintiff’s Amended Complaint and Information. Plaintiff filed her Second Amended Complaint on November 13, 2024. See Exhibit T, Plaintiff’s 2nd Amended Complaint and Information. Plaintiff filed her Third Amended Complaint on November 27, 2024. See Exhibit MM, Plaintiff’s 3rd Amended Complaint and Information. 2. Plaintiff alleges Defendants violated her ADA rights, 7th and 14th Amendments, Title 7, Article 90 of the Colorado Corporation and Associations Act and the Corporate Transparency Act (Ex. MM, at pages 1-6 ¶¶ 1-7). 3. Plaintiff alleges that on or about September 25, 2023, she was assaulted by a McDonald’s store employee because she asked for a refund for a wrong food order. (See Page 9 at ¶ 1). Plaintiff alleges that McDonald’s refused to give her a refund, so she called 911 (See Page 11 at ¶ 17). Plaintiff alleges that when Officer Barber arrived at the parking lot, the MOD hurled refund money and coins at her (See Page 12 at ¶ 19-20). Plaintiff further alleges that Officer Barber and the MOD were going to be filing charges of trespass against her (See Page 12 at ¶ 25). 4. Plaintiff alleges that as a proximate result of the incident as set forth on pages 9- 21, she sustained pain, suffering, emotional distress for assault & battery of a disabled customer, humiliation, emotional distress and undue physical hardship. (Ex. MM, at pages 59-62 ¶¶ 1-16). 1 Plaintiff improperly named The City of Fort Collins, which have both been corrected in the caption of this Notice. Case No. 1:25-cv-00063 Document 1 filed 01/08/25 USDC Colorado pg 2 of 11 3 5. The Complaint contains the following claims: Against Defendant Local Franchise Owner Organization of McDonald’s Store No. 11148: violation of C.R.S. § 13-21-11 – Negligence. Ex. MM, at page 30; violation of 42 U.S.C. § 2000a(a)(b)(2) – Prohibition Against Discrimination or Segregation in Places of Public Accommodation. Ex. MM, at page 32; violation of 42 U.S.C. § 12182 et seq. – Prohibition of Discrimination by Public Accommodations. Ex. MM, at page 32. Against Defendant McDonald’s Restaurant 11148 Manager-On-Duty: violation of 42 U.S.C. § 2000a(a)(b)(2) – Prohibition Against Discrimination or Segregation in Places of Public Accommodation. Ex. MM, at page 32; violation of 42 U.S.C. § 12182 et seq. – Prohibition of Discrimination by Public Accommodations. Ex. MM, at page 32; violation of 18 U.S.C. § 241 – Conspiracy against rights. Ex. MM, at page 44; Against McDonald’s Corporation of Illinois: violation of 42 U.S.C. § 2000a(a)(b)(2) – Prohibition Against Discrimination or Segregation in Places of Public Accommodation. Ex. MM, at page 32; violation of 42 U.S.C. § 12182 et seq. – Prohibition of Discrimination by Public Accommodations. Ex. MM, at page 32; violation of C.R.S. § 4-2- 302(1)(2) – Unconscionable Contract or Clause. Ex. MM, at page 33; violation of C.R.S. § 7- 90-704 – Service on Entities. Ex. MM, at page 33; violation of C.R.S. §7-90-801(1)(4) – Authority to Transact Business or Conduct Activities Required. Ex. MM, at page 33; C.R.S. § 7-90-804 – Change of Statement of Foreign Entity Authority to Transact Business of Conduct Activities. Ex. MM, at page 33; C.R.S. § 7-90-314 (1)(b)(2) – Fraudulent Filings – Referral to Attorney General – Referral to Administrative Law Judge - Marking filing as fraudulent deceptive trade Practice. Ex. MM, at page 33. Case No. 1:25-cv-00063 Document 1 filed 01/08/25 USDC Colorado pg 3 of 11 4 Against McDonald’s Restaurant No. 11148 Local Franchise Owner Organization: violation of 42 U.S.C. § 2000a(a)(b)(2) – Prohibition Against Discrimination or Segregation in Places of Public Accommodation. Ex. MM, at page 32; violation of 42 U.S.C. § 12182 et seq. – Prohibition of Discrimination by Public Accommodations. Ex. MM, at page 32; violation of C.R.S § 7-90-801(1)(4) – Authority to Transact Business or Conduct Activities. Ex. MM, at page 37; violation of C.R.S. § 7-90-802(3) – Consequences of Transacting Business or Conducting Activities Without Authority. Ex. MM, at page 37; violation of C.R.S. § 7-90-804 – Change of Statement of Foreign Entity Authority to Transact Business of Conduct Activities. Ex. MM, at page 37; violation of C.R.S. § 7-90-314 (1)(b)(2) – Fraudulent Filings – Referral to Attorney General – Referral to Administrative Law Judge - Marking filing as fraudulent deceptive trade Practice. Ex. MM, at page 37. Against Fort Collins Police Officer August (sic) Barber: violation of 42 U.S.C. § 1983 – Civil Action for Deprivation of Rights. Ex. MM, at page 43. violation of C.R.S. § 13-21- 131(1)(3)(2)(A)(B)(3)(4)(A)(B)(i)(A)(B)(II)(III)(5) – Civil Action for Deprivation of Rights. Ex. MM, at page 44; violation of 42 U.S.C. § 2000a(a)(b)(2)(d)(1)(2)(3) – Prohibition Against Discrimination or Segregation in Places of Public Accommodation (race) (State Action). Ex. MM, at page 43; 42 U.S.C. §12182 et seq. – Prohibition by Discrimination by Public Accommodation (Title II & disability). Ex. MM, at page 44; violation of 18 U.S.C. § 241 – Conspiracy against rights. Ex. MM, at page 44; violation of 42 U.S.C. § 12181(7)(B) – Definition Public Accommodation Restaurant. Ex. MM, at page 44; Violation of Title VI of the Civil Right Act of 1964 – Prohibition of Discrimination on the basis of race, color or national origin in programs that receive Federal financial assistance. Ex. MM, at page 44. Case No. 1:25-cv-00063 Document 1 filed 01/08/25 USDC Colorado pg 4 of 11 5 Against Fort Collins Police Services: violation of C.R.S. § 13-21- 131(1)(3)(2)(A)(B)(3)(4)(A)(B)(i)(A)(B)(II)(III)(5) – Civil Action for Deprivation of Rights. Ex. MM, at page 43; violation of 18 U.S.C. § 241 – Conspiracy against rights. Ex. MM, at page 44; violation of Law Enforcement Misconduct Statute 42 U.S.C. § 14141(a)(b). Ex. MM, at page 48; violation of 42 U.S.C. § 12132 – Discrimination. Ex. MM, at page 48. II. COMPLIANCE WITH THE RULES 4. All procedural requirements related to the removal of this action have been satisfied. 5. Service has not yet been properly effectuated on the Defendants, Fort Collins Police Officer August Barber and the City of Fort Collins. Plaintiff claims service was effectuated on December 9, 2024. See Exhibit III and Exhibit JJJ, respectively. 6. This Notice of Removal is filed within thirty (30) days of the alleged service of the Plaintiff’s Complaint and Summons on the Fort Collins Defendants, and is therefore timely under 28 U.S.C. §§ 1441 and 1446(b). 7. A copy of this Notice of Removal will be filed with the State Action and served upon Plaintiff’s counsel. 8. Pursuant to 28 U.S.C. § 1446(a) and D.C.Colo.LCiv.R. 81.1(b), copies of the following process, pleadings, and orders that were served upon Defendants or filed in the State Action are attached as follows: Exhibit A Complaint Exhibit B Civil Cover Sheet Exhibit C Summons Issued to McDonald’s Corp IL Case No. 1:25-cv-00063 Document 1 filed 01/08/25 USDC Colorado pg 5 of 11 6 Exhibit D Summons Issued to McDonald’s Store 11148 Exhibit E Summons Issued to McDonald’s Store 11148 & Manager on Duty on 09-25-2024 Exhibit F Summons Issued to Officer Barber Exhibit G Summons Issued to Fort Collins Police Department Exhibit H Order re: Complaint w/Jury Demand Exhibit I Plaintiff’s Motion for Extension of Time for Filing Exhibit J Order to Show Cause Exhibit K First Amended Complaint Exhibit L First Amended Civil Cover Sheet Exhibit M Summons Issued to McDonalds Corporation IL Exhibit N Summons Issued to the State of Colorado Exhibit O Summons Issued to Local Franchise Owner of McDonald’s Restaurant 11148 Fort Collins Exhibit P Summons Issued to Officer Barber Exhibit Q Summons Issued to Fort Collins Police Services Chief of Police Jeff Swoboda Exhibit R Summons Issued to Manager-On-Duty of McDonalds Restaurant 11148 Fort Collins Exhibit S Summons Issued to McDonalds Corporation IL Exhibit T Second Amended Complaint Exhibit U Second Amended Civil Cover Sheet Exhibit V Summons Issued to McDonald’s Corporation, LLC Exhibit W Certificate of Service Case No. 1:25-cv-00063 Document 1 filed 01/08/25 USDC Colorado pg 6 of 11 7 Exhibit X Rejection of Service of Process Exhibit Y Order re: Certificate of Service Exhibit Z Order re: Rejection of Service of Process Exhibit AA Certificate of Service to Attorney General Phil Weiser of Office of the Attorney General Exhibit BB Certificate of Service to Desiree-Ralls Marrison Chief Legal Officer of McDonald’s Corporation Exhibit CC Certificate of Service to Fort Collins Police Services Chief of Police Jeff Swoboda Exhibit DD Certificate of Service to Officer Barber of Fort Collins Police Services Exhibit EE Plaintiff’s Motion for Appointment of Counsel Exhibit FF Civil Cover Sheet Exhibit GG Second Description of Occurrence (Amended 11/19/2024) Exhibit HH Order re: Appointment of Counsel Exhibit II Order re: Certificate of Service to Attorney General Phil Weiser of Office of the Attorney General Exhibit JJ Order re: Certificate of Service to Desiree-Ralls Marrison Chief Legal Officer of McDonald’s Corporation Exhibit KK Order re: Certificate of Service to Fort Collins Police Services Chief of Police Jeff Swoboda Exhibit LL Order re: Certificate of Service to Officer Barber of Fort Collins Police Services Exhibit MM Third Amended Complaint Exhibit NN Third Amended Civil Cover Sheet Exhibit OO Summons Issued & Certificate of Service to the State of Colorado Case No. 1:25-cv-00063 Document 1 filed 01/08/25 USDC Colorado pg 7 of 11 8 Exhibit PP Summons Issued & Certificate of Service to McDonald’s Corporation IL Exhibit QQ Summons Issued & Certificate of Service to McDonald’s Restaurant 11148 Exhibit RR Summons Issued & Certificate of Service to McDonald’s Restaurant 11148 – Manager on Duty on 9/25/2023 Exhibit SS Summons Issued & Certificate of Service to Officer Barber Exhibit TT Summons Issued & Certificate of Service to Jeff Swoboda Chief of Police, Fort Collins Police Services Exhibit UU Civil Cover Sheet Exhibit VV Letter from Attorney General’s Office re: Service Exhibit WW Plaintiff’s Claims Arising from Discovery Exhibit XX Return of Service – Certified Mail Exhibit YY Return of Service – McDonald’s Corporation IL Exhibit ZZ Return of Service – McDonald’s Corporation Exhibit AAA Return of Service – McDonald’s Restaurant No. 11148 Exhibit BBB Return of Service – Fort Collins Police Services Exhibit CCC Return of Service – Officer Barber Exhibit DDD Sheriff’s Affidavit of Non-Service Exhibit EEE Plaintiff’s Motion to Compel Production of Material Evidence Exhibit FFF Plaintiff’s Motion to Amend to Remove State of Colorado as a Defendant Exhibit GGG Return of Service – McDonald’s Corporation Exhibit HHH Return of Service – McDonald’s Franchise Owner McDonald’s Restaurant 11148 Case No. 1:25-cv-00063 Document 1 filed 01/08/25 USDC Colorado pg 8 of 11 9 Exhibit III Return of Service – Officer Barber Exhibit JJJ Return of Service – Chief of Police Jeff Swoboda Exhibit KKK Return of Service – McDonald’s Restaurant Manager on Duty on 9/25/2024 Exhibit LLL McDonald’s Defendants’ Motion to Dismiss Exhibit MMM Order re: Motion to Amend Exhibit NNN Order re: Motion to Compel Production of Material Evidence Exhibit OOO Fort Collins Defendants’ Motion to Dismiss 9. Pursuant to D.C.Colo.LCivR 81.1, the Fort Collins Defendants state that pending before the State Court, are the following Motions: McDonald’s Defendants’ Motion to Dismiss (See Exhibit LLL) and Fort Collins Defendants’ Motion to Dismiss. (See Exhibit OOO). 10. Pursuant to Fed.R.Civ.P. 81(c), Defendants will present their defenses by pleading at the time prescribed herein, and specifically reserves their rights to assert all defenses, including those defenses under Fed.R.Civ.P. 12(b). 11. Defendants have complied with all of the requirements of 28 U.S.C. § 1446 and D.C.Colo.LCivR. 81.1. 12. The remaining Defendants – McDonalds Corp. IL – McDonald’s Store No. 11148 and Local Franchise Owner Organization, Franchise MOD (09-25-2023) were served with the 3rd Amended Complaint on December 3, 2024 (See Exhibit GGG, Exhibit HHH and Exhibit KKK respectively). Undersigned Counsel hereby certifies that he conferred with Counsel for the McDonald’s Defendants, and they have indicated that they consent to this removal. See 28 U.S.C. § 1446(b)(2)(A). Tate v. SNH CO Tenant LLC, 22-cv-00827-MEH, 2022 U.S. Dist. LEXIS 126042 at *5-6 (D. Colo. July 15, 2022). Case No. 1:25-cv-00063 Document 1 filed 01/08/25 USDC Colorado pg 9 of 11 10 III. FEDERAL QUESTION 13. This case is removable pursuant to 28 U.S.C. § 1441(c)(1)(A) because Plaintiff’s Complaint purportedly attempts claims against the Fort Collins Defendants pursuant to: 42 U.S.C. § 1983 – Civil Action for Deprivation of Rights; 42 U.S.C. § 2000a(a)(b)(2)(d)(1)(2)(3) – Prohibition Against Discrimination or Segregation in Places of Public Accommodation (race) (State Action); 42 U.S.C. §12182 et seq. – Prohibition by Discrimination by Public Accommodation (Title II & disability); violation of 18 U.S.C. § 241 – Conspiracy against rights; violation of 42 U.S.C. § 12181(7)(B) – Definition Public Accommodation Restaurant; Violation of Title VI of the Civil Right Act of 1964 – Prohibition of Discrimination on the basis of race, color or national origin in programs that receive Federal financial assistance; 18 U.S.C. § 241 – Conspiracy against rights; 42 U.S.C. § 14141(a)(b); violation of 42 U.S.C. § 12132 – Discrimination. NOTICE OF RELATED CASE Pursuant to D.C.COLO.LCivR 3.2 et seq., the Fort Collins Defendants notify the Court that this matter was previously pending under Case No. 1:23-cv-02671-LTB-SBP. A separate Notice of Related Case is being filed contemporaneously with this Notice of Removal. WHEREFORE, Defendants August Barber and the City of Fort Collins, respectfully requests the action now pending in the Larimer County District Court, Case No. 2024CV202, be removed therefrom to this Court and that all further proceedings be heard in this Court. Respectfully submitted this 8th day of January 2025. s/ Mark S. Ratner Mark S. Ratner, Esq. Hall & Evans, L.L.C. Case No. 1:25-cv-00063 Document 1 filed 01/08/25 USDC Colorado pg 10 of 11 11 1001 17th Street, Suite 300, Denver, CO 80202 303-628-3300 /Fax: 303-628-3368 ratnerm@hallevans.com ATTORNEYS FOR DEFENDANTS CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on the 8th day of January 2025, a true and correct copy of the foregoing NOTICE OF REMOVAL was filed with the Court via CM/ECF and served on the below-listed party by email: Rachel E. Ryckman, Esq. rryckman@wsteele.com Morgan S. Nance, Esq. mnance@wsteele.com and was mailed via United States Postal Service to the following: Tersita Reyes 2805 Fairview Drive Fort Collins, CO 80524 (970) 488-9916 Pro-Se Plaintiff s/ Sarah Stefanick Case No. 1:25-cv-00063 Document 1 filed 01/08/25 USDC Colorado pg 11 of 11